While CC has fiercely debated some cases where a university failed to protect the accused in a rape investigation, or the victim’s story was suspect from the outset, here’s a reminder that many colleges’ shortcomings still lie at the other extreme.
“At State Universities in Kansas” would probably have been a better way of putting it (mods are welcome to make the edit), but the article also mentions another case at the University of Kansas - filed one day before the lawsuit discussed in the NYT article. This seems to be a problem that hasn’t received much attention statewide.
The students experience is a very sad state of affairs caused by excess alcohol consumption. She would have had to have had 8 drinks or more in a hour for a BAC of 0.30 @120 lbs where she could pass out. That is serious binge drinking.
Colleges need a reasonable amount of proof to take action. So do police. Both of these victims were unconscious/incapacitated/blacked out. That makes it difficult-to-impossible to prove what happened.
If the incident happens and there’s no proof, often the best the school can do is provide support and counseling to the victim. And to focus on prevention and risk minimization in the future.
That’s just how it is and how it will likely always be.
Don’t know the fine details on these particular incidents.
Schools often do a good job on these situations (example Vanderbilt players) when there’s reasonable evidence available. But that often is not the case.
“If the incident happens and there’s no proof, often the best the school can do is provide support and counseling to the victim. And to focus on prevention and risk minimization in the future.”
But if I’m reading the article right, the schools didn’t do any investigation at all, so they wouldn’t know whether there was any proof. They just punted based on the idea that attacks between students at the houses of recognized fraternities are just outside of their jurisdiction, which is a ridiculous abdication of responsibility.
Its not just photos and video. There might have been a bunch of witnesses to the sex act with the unconscious student (a fact pattern that, I’m sorry to say, is not that unusual). It’s even possible that an investigation would reveal admissions by the accused in texts or emails to friends. Or that investigation might have exonerated the accused – but you can’t know unless you look.
I’m reminded of the FSU case. The university seems to have no interest in a thorough investigation. The difference between the two (not that it makes one more acceptable than the other) is that you could understand the incentives at work in one case; FSU was chafing at investigating the star QB who helped the football team win titles and generated donations from happy alumni. The police had similar reasons (IIRC one of the officers assigned to the case sometimes made extra $ by policing the team’s home games) Here, KSU’s stance (so far as we can tell) is the result of poorly trained title IX staff, or the view that boys will be boys and, well, ¯_(ツ)_/¯.
The jurisdictional issue is one of many murky areas in title ix.
Is the fraternity a school sponsored activity or organization? Is the frat an educational program of the college? Sometimes the answer is yes, sometimes no.
Would the school’s conduct code apply to a fist fight at the frat house between students? If yes, then presumably the code also has to reach a sexual assault. But if the code does not apply to a fist fight (leaving that to local law enforcement)? Then the code probably can also leave the sexual assault to the cops.
Even if the code doesn’t reach the fight/assault, does the incident off-campus contribute to a hostile environment on-campus? And on and on and on…
Depending on the circumstances and policies, KU/KSU might be totally fine under title ix asserting non-jurisdiction. Or they might not be fine. Which is why this is a good business area for plaintiffs lawyers.